Riciotto v. Clement

Temple, C. Appeal from judgment and order refusing a new trial.

This is an action of claim and delivery to recover possession of two horses, which plaintiff alleges defendant “ still unlawfully withholds and detains.”

The pleadings were verified, and the defendant, in his answer, denies that he “ unlawfully withholds or detains or detained said goods and chattels.” For a further and separate defense he admits the taking, and attempts to justify, as constable, under a writ of attachment against one Smith, as whose property they were taken. He avers that judgment passed against Smith in the attachment suit, and the goods were taken by him as constable, under an execution issued upon the judgment, and were sold by virtue of the writ, June 6, 1889. This suit was commenced June 19, 1889, which was after the goods had passed out of the possession of defendant.

The plaintiff, testifying on the trial, states, in effect, that the goods had been sold and delivered before suit was commenced; but his attorney here contends that as the answer admits that defendant still detains the goods, such evidence cannot be noticed.

But, as we have seen, the defendant shows in the affirmative allegations that he had taken the goods under an execution, and had sold them June 6,1889, which was thirteen days before the commencement of this action. The evidence came in without objection, —was in fact put in by plaintiff himself. Does it show that he had no cause of action?

In the code the action is called “ an action to recover the possession of personal property” (Code Civ. Proc., sec. 509), and the provisional remedy, provided with all [107]the machinery and procedure, imply that it is to recover property from the defendant which he unjustly detains. The facts which constitute the plaintiff’s cause of action certainly are those which show that plaintiff is entitled to possession, and that defendant wrongfully withholds the property from him.

Quite often the plaintiff may choose whether he will content himself with damages for the conversion, or seek to recover the specific property; but the two remedies are quite distinct. In what is called trover, present possession of the property is immaterial, but the relief sought in claim and delivery cannot be had from the defendant, unless he is then possessed of the property, which fact must therefore constitute an essential element in plaintiff’s cause of action.